Monday, January 21, 2013

Briefs Filed by Monsanto and the Solicitor General in Bowman v. Monsanto

Last week, I posted briefs filed by petitioner Vernon Bowman
and his amici in Bowman v. Monsanto. Today, I'm posting respondent Monsanto's
brief, along with a brief filed by the US Solicitor General in support of
affirmance (i.e., in support of Monsanto).

Monsanto argues that the first
sale doctrine (i.e., patent exhaustion) is inapplicable to the soybeans grown
by Bowman because they are second-generation seeds, and were not the subject of
an authorized sale.Monsanto further
argues that if the Court were to accept petitioner's argument, it would result
in utility patent owners receiving less protection than is provided under the
Plant Patent Act and the Plant Variety Protection Act, which would be contrary
to Congress's intent and Supreme Court precedent holding that utility patent
owners receive greater protection than is provided under the PPA or PVPA. The
brief concludes by explaining that contractual remedies alone are inadequate to
encourage innovation in "readily replicable technologies," (a more
accurate label than the one used by Bowman, i.e., "self-replicating
technology").

The US Solicitor General argues
that the authorized sale of one article embodying a patented invention (i.e., a
patented seed) does not exhaust the patentees right to control the creation of
other articles embodying the same invention (i.e., subsequent generations of
that seed). The Solicitor General characterizes the Federal Circuit's Mallinkrodt line of cases applying a
"conditional sale" doctrine as erroneous, but that this “do[es] not
cast doubt on the correctness of the decision below.”

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About Me

I am a law professor at the University of Missouri-Kansas City School of Law. My primary research interests lie at the intersection of biotechnology and intellectual property. This blog provides analysis and commentary on recent developments relevant to this area of the law.